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Wisconsin is a no fault divorce state. If the parties have voluntarily lived apart continuously for 12 months or more immediately prior to the commencement of the action and one of the parties will state that the marriage is irretrievably broken, the court will generally grant the judgment of divorce if the other procedural requirements of Chapter 767 Actions Affecting the Family have been met.

 

Both parties usually state under oath at the final hearing that the marriage is irretrievably broken and there’s no reasonable prospects of reconciliation. As a practical matter, if one of the parties wants a divorce in a no fault state, they’re likely going to get it. It takes two people to be married.

 

The residency requirements for Wisconsin divorce are 6 months in the state next preceding the commencement of the action and 30 days in the county of filing. The divorce is commenced with the filing of a petition which contains, among other things, the name and birth date of the parties, the date and place of the marriage, and the facts relating to the residents of both parties.

 

The Petition is filed with a Summons and both are served on the non moving party. Generally there is not a significant advantage to being a petitioner (the one that files) or a respondent (the one that receives the service of the petition). The parties can file a joint petition for a divorce. An action for divorce may not be brought to final hearing or trial until 120 days after service of the Summons and Petition upon the respondent, or upon the expiration of 120 days after filing of the joint petition. The time period between service of the petition, and the final hearing, is a waiting period. Things that happen in this period, happen in the pendency of the action.

 

Because of the 120 day waiting period, it’s often necessary to have orders during the pendency of the action. These are known as temporary orders. They are usually initiated upon notice and motion, and are often held before a family court commissioner. They can cover a range of issues from granting legal custody to the parties jointly, or to one party solely, to prohibiting removal of the minor children from the jurisdiction of the court, to requiring either party to pay family support, child support, or maintenance.

 

When children are involved, the overriding standard in Chapter 767 is the best interest of the children standard. There is a specific statute on custody and placement that contains a number of factors for the court to consider. If custody and physical placement is in dispute, the parties have to go to a mediation session. If an agreement on custody and placement cannot be reached at a mediation session, usually one of the parties petitions for appointment of a Guardian ad Litem (GAL). A GAL is an attorney appointed by the court to be a voice for and represent the best interests of the children. The GAL generally performs an investigation and submits a report prior to trial or pursuant to a scheduling order or agreement.

 

The GAL opinion is not binding on the Circuit Court, the Judge is still the Judge and has the ultimate decision making responsibility, but the court’s generally give the GAL opinion significant weight.

 

When it comes to property division, the key phrase to keep in mind is “equitable division.” Equitable division may or may not be a 50/50 division. There is a specific statute on property division that contains a number of factors for the court to consider. Marriages in community property states, like Wisconsin, are viewed as a partnership. In unwinding a partnership, like dissolving a marriage, things go best if the parties can get along. The more disputes there are in a divorce, the more there’s need for attorney work and a resulting increase in attorneys fees.

 

Towards the end of the case, there may be status conferences or stipulated final hearing dates set. Status conferences are simply dates the court uses to keep track of its cases and to be advised of the progress on the case. Stipulated final hearings are used to put agreements on the record and grant divorces when all the requirements have been met, and the parties have an agreement. These are referred to as marital settlement agreements or  final stipulations. These hearings that are stipulated generally don’t take very long. There’s generally only several exhibits including each party’s financial disclosure, and the final marital settlement agreement or final stipulation.

 

If the parties can’t reach an agreement, the case may be set for a contested final hearing which is a trial to the Court. There’s no jury trial right in divorce.

 

In divorce and other matters affecting the family, the best advice may be to seek counsel early when divorce appears inevitable. Get good experienced legal advice from an attorney who has had practice in the family law area for a number of years.

 

It’s better to try to get a fair resolution at or before the final hearing, than to try to fix it later.

 

In general, try to keep some of the emotion out of the breakup of the marriage which is often a significant life changing event for the parties. If children are involved, think in terms of the children’s best interests and do not put the children in the middle of the dispute between parents. On the property division issues, make full and honest disclosure and don’t dispose of, conceal, or giveaway property in an attempt to better ones position in the case. This can only add to unnecessary time and expense in the discovery process and may lead to a finding of contempt and sanctions against the wrongful party.

 

This information is just a general overview of divorce. There have been entire treatises written on the subject and there is a great amount of information out there. Some has been published through the State Bar. This overview is only intended to provide a thumbnail sketch for divorce, so don’t rely upon this for your legal decisions. Seek counsel to protect your legal rights and to answer your questions in this often emotionally challenging area.